This case involves Mr Zoltan and Ms Melita Kovacs, a married couple who owned a takeaway food store in the small town of Napranum near Weipa in Far North Queensland. Sometime in December 2000, the couple decided to bring a woman from the Philippines to Australia to have her work in their shop and as a domestic helper in their home. [R v Kovacs  QCA 143  (‘Kovacs’)] Subsequently, Mr Kovacs (an Australian citizen of Hungarian background) and his friend Mr Balint Olasz made plans to travel to Manila to find a suitable woman. [Kovacs  2 Qd R 51 ] Mr Olasz later claimed that he travelled to the Philippines in 2001 intending to find a legitimate relationship with a Filipina woman after seeing his friend Mr Kovacs had a successful marriage to the Phillipines-born Melita. Because Mr Olasz was on an invalid pension and had little money, it was agreed that Mr Kovacs would pay for Mr Olasz’s airfares to the Philippines, provided the costs of this were offset by Mr Olasz’s new wife working for them for a short period. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11]
The first attempt made by Mr Olasz to marry failed when the woman returned to her boyfriend a few days after the ceremony. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11] Ms Kovacs then sought assistance from a woman she knew in the Philippines to identify a suitable person. [Kovacs  2 Qd R 51 ] The woman in the Philippines suggested her niece, Ms G. At that time, the Court later heard, Ms G. was working with her aunt in a sewing factory and earning a little over $10 a week. She was then 25 years of age and living in Manila with nine other family members in a one room, galvanised iron shack with no electricity, running water or telephone. The complainant was unmarried and had a son who was ill. [Kovacs  2 Qd R 51 ]
When Melita and Zoltan Kovacs approached Ms G.’s mother (who was in poor health at that time) with their plan, the mother encouraged Ms G. to go with them so that Ms G. could assist the family by sending remittances from Australia to the Philippines. [Kovacs  2 Qd R 51 ]
On 8 January 2001 Ms G. and Mr Olasz married in the Philippines. [Kovacs  2 Qd R 51 ]. According to court proceedings in 2008, Ms G was aware that the marriage was a sham only for the purpose of securing her visa to enter Australia. [Kovacs  2 Qd R 51 ]
This appears to conflict with a claim made by Mr Olasz in 2010 that he intended the marriage to be legitimate. Mr Olasz spent six weeks living with Ms G. ‘as husband and wife’ in the Philippines before returning to Australia. [Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11] Following this, communication to his new wife ceased until September 2001 when he returned to Manila for three months. The purpose of this visit was to assist Ms G in her application for an Australian visa due to complications with an earlier application. [Kovacs  2 Qd R 51; Margo Zlotkowski, ‘Marriage no sham, says man’, The Cairns Post (Cairns), 12 February 2010, 11]
Almost a year later, on 28 August 2002, Ms G. arrived in Australia where she was met by Zoltan Kovacs at Cairns airport. [Kovacs  2 Qd R 51 ] Mr Olasz was away on a sailing trip at that time. [Kay Dibben, ‘Man jailed for rape of sex slave ‘niece’’, The Sunday Mail (Brisbane), 21 August 2005, 22] They initially stayed in a motel in Cairns for several days where Mr Kovacs allegedly raped Ms G. on at least three occasions. [Kovacs  2 Qd R 51 . The allegations of rape form the basis of additional charges] In early September 2002, Mr Kovacs brought Ms G. to Weipa and she began working in the shop during the day and in the Kovacs’ house at night. [ Kovacs  2 Qd R 51 ]
The working conditions of Ms G. can be described as nothing short of slavery. She had to work seven days a week, up to 17 hours per day, with little or no pay. At trial, the Court heard evidence that on weekdays Ms G. was working from 6am to 6 pm in the shop, followed by between four and five hours of domestic work at the Kovacs’ house where she cared for three small children and did household duties. She also had to work in the shop on Saturdays between 6am and 12pm and performed domestic work the remainder of the weekend. She was not allocated any work free days. [ Kovacs  2 Qd R 51 [9 - 10]]
When Ms G. was ‘recruited’ in the Philippines, Melita and Zoltan Kovacs said that she would receive $800 for her work in Australia, which Ms G. assumed was a sum to be paid monthly. Ms G. was also told that some payment would be withheld to cover the expenses for her visa and travel to Australia. The total amount of these expenses was never revealed to her and she was not informed that she would have to do any domestic work in addition to working in the shop. Mr Kovacs did tell Ms G. that she would ‘have to work for five years before she could leave Australia.’ [Kovacs  2 Qd R 51 ] After arriving in Australia, Ms G. never received a regular salary. At some point, she received two payments, one of $400 and one of $60. Ms G. then gave some of that money, $350, to Zoltan Kovacs to give to her family in Manila. The family later received about 7000 pesos, which converted to approximately $180, and the Kovacs paid for some medical expenses for Ms G.’s son in Manila. It is not clear whether or not further payments were made to the family. [ Kovacs  2 Qd R 51 [8 - 9]]
Mr Kovacs continued raping Ms G. in Weipa. At trial, the Court heard evidence that:
Mr Kovacs had sexual intercourse with the complainant at the shop two to three mornings a week before the arrival at work of another employee, Ms Kris. On some of these occasions he gave her twenty or thirty dollars, which he described as “pocket money”. He also sexually assaulted her in the house when his wife was absent. [Kovacs  2 Qd R 51 ]
Ms G. did not initially complain of or report the rape because Zoltan Kovacs threatened that ‘they would all go to gaol’ if she spoke to police. [Kovacs  2 Qd R 51 ] Ms G. also continued to believe that she may be able to help her family abroad and did not want her mother to worry. Eventually Ms G. made an attempt to flee from the Kovacs in October 2002, about two months after arriving in Australia. On that occasion she took a taxi to Ms Kris, a co-worker, who was the only person Ms G. knew apart from the Kovacs. But Zoltan and Melita Kovacs found Ms G. immediately, brought her back to their house and confiscated her passport. [Kovacs  2 Qd R 51 [11-13]]
In December 2002, Ms G. was able to flee from the Kovacs successfully with the help of Mr Kovacs’ estranged daughter, Ms Fabian, who was visiting her family for Christmas while her father was abroad. During that time she drove Ms G. to the shop several times and on one of these trips Ms G. told Ms Fabian that she had been repeatedly raped by her father and asked for her help to escape. Together with Ms Kris, Ms Fabian helped Ms G. buy a ticket to fly from Weipa to Cairns. [Kovacs  2 Qd R 51 ] She left Weipa with only a small handbag and the clothes she was wearing. [Kay Dibben, ‘Man jailed for rape of sex slave ‘niece’’, The Sunday Mail (Brisbane), 21 August 2005, 22] A former fishing buddy of Mr Kovacs, Mr Les Morvai, gave evidence in 2010 that he, too, helped to shelter Ms G. while they were in Cairns and that together they went to the Kovacs to demand the return of her passport but were refused. [‘Alleged slavery victim ‘ordered’ around, family friend says’, The Cairns Post (Cairns), 16 February 2010, 9] Ms G. later contacted the Department of Immigration and Citizenship (DIAC) to inquire about obtaining a new passport and DIAC then referred the matter to police.
1st instance: Supreme Court of Queensland (Townsville) (unreported)
Court: Supreme Court of Queensland (Townsville)
Trial date: November 26, 2007 – December 5, 2007
Verdict date: December 5, 2007
Sentencing decision date: December 6, 2007
Zoltan and Melita Kovacs were tried together before the Supreme Court of Queensland, sitting in Townsville, in November 2007. A pre-trial application for a separate trial by Mrs Kovacs was heard in Cairns and dismissed on 19 September 2007. No such application was made to the trial judge. [Kovacs  2 Qd R 51  ]
At the end of the trial, which spanned for over a week, Zoltan Kovacs was convicted for arranging the marriage between G and Mr Balint Olasz for the purpose of assisting G to obtain a visa to enter Australia; [Section 240(1) Migration Act 1958 (Cth) ] intentionally possessing a slave between August 27, 2002, and February 5, 2003; [Section 270.3(1)(a) 1st alt Criminal Code (Cth) ] and intentionally exercising power over/using a slave over the same period. [Section 270.3(1)(a) 2nd alt Criminal Code (Cth) ] He was sentenced to one year imprisonment for the marriage offence, and eight years imprisonment for the slavery offences. A non-parole period of three years and nine months was set.
Melita Kovacs was convicted for the same offences and was sentenced to four years imprisonment for the slavery offences and one year imprisonment for arranging the sham marriage. The non-parole period was set for her at 18 months. [Kovacs  2 Qd R 51  ]
2nd Instance: R v Kovacs  2 Qd R 51 (appeal case – discussed below).
Appeal Court: Queensland Court of Appeal
Hearing: October 29, 2008
Judgment: December 23, 2008
See below for reasoning. A retrial was ultimately ordered.
3rd Instance: Supreme Court of Queensland (Cairns) (unreported)
Court: Supreme Court of Queensland (Cairns)
Trial: February 11, 2010 – February 17, 2010
Verdict: February 17, 2010
Sentencing decision: February 18, 2010
In February 2010, after a five-day trial in the Queensland Supreme Court at Cairns, Melita Kovacs was found guilty of using and possessing a slave while Zoltan Kovacs pleaded guilty to the same charges. Justice Stanley Jones subsequently sentenced Melita Kovacs to four years in jail, with a non-parole period of 18 months. Having served nine months in prison already, she will now be due for parole in December 2010. Mr Kovacs was sentenced to eight years in jail but is eligible for parole in May 2011 due to the fact that he is already serving a seven-year term for the rape and sexual assault of a different woman, Ms AV, in 1997. [Evan Schwarten, ‘Qld: Couple jailed for slavery’, Australian Associated Press (Rhodes), 18 February 2010. See below, ‘Previous Criminal History’; R v Kovacs  QCA 441] Mr Kovacs’ guilty plea and poor state of health were taken into account in the sentencing. [‘Kovacs jailed for slavery’, The Cairns Post (Cairns), 19 February 2010]
On March 15, 2010, Melita Kovacs sought leave to appeal her sentence in the Supreme Court, and the matter is ongoing. [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 May 2009 – 30 June 2010, Canberra, ACT: Commonwealth of Australia, 2010, 34].
Note: Zoltan Kovacs also faced charges of rape in relation to Ms G. These proceedings are not discussed in this case report (see further, R v Kovacs  QCA 143 First appeal: R v KO  QCA 34).
On December 21, 2007, Mr and Ms Kovacs filed appeals against their convictions and sentences in the Queensland Court of Appeal. The appeal was heard on 29 October 2008 before de Jersey CJ, Muir and Fraser JJA. On 23 December 2008, Muir JA delivered judgment with which de Jersey CJ and Fraser JA agreed. [Kovacs  2 Qd R 51] In brief, the Court of Appeal held that a miscarriage of justice had occurred on the basis of two errors of the law. Firstly, evidence that should have been regarded as inadmissible was admitted. Secondly, the trial judge gave inadequate directions under Queensland legislation in relation to one witness who gave evidence from behind a screen. [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 72.] Accordingly, the appeal was allowed, the slavery convictions were set aside and a retrial was ordered. The convictions for arranging the sham marriage were upheld. [Kovacs  2 Qd R 51 ]
In R v Kovacs the Queensland Court of Appeal considered six grounds of appeal contended by the appellants. The Court of Appeal dismissed the first ground of appeal that the trial judge had both misdirected and failed to direct the jury in relation to the elements of the slavery charges against both Melita and Zoltan Kovacs. [Kovacs  2 Qd R 51 [14 - 19]] It confirmed the approach of the High Court in stating that there are three elements to the offence of slavery. [Kovacs  2 Qd R 51 ]. On the first ground of appeal it was also argued that there was a failure to give adequate directions regarding the fault element of the slavery offence because the meaning of ‘intention’ and how it relates to the physical element of ‘conduct’ had not been explained. [Kovacs  2 Qd R 51 [20 - 25]]. The Court, however, did not find that this amounted to a miscarriage of justice. [Kovacs  2 Qd R 51 ].
The Court of Appeal also rejected the second ground of appeal that ‘the primary judge erred in directing the jury that to find [Ms Kovacs] guilty they did not need to be satisfied that [Ms G] was in the condition of slavery for the duration of the period charged.’ [Kovacs  2 Qd R 51 [33 - 43]]. This contention necessitated a consideration of what amounted to the condition of slavery. The trial judge directed the jury that ‘you do not have to be satisfied that 24 hours a day, seven days a week that condition existed.’ [Kovacs  2 Qd R 51 ] Instead he directed the jury that they only had to be satisfied beyond reasonable doubt ‘that during that period she was at some time or times in a condition of slavery and that at the time or times she was in a condition of slavery she was possessed or used by the accused’. [Kovacs  2 Qd R 51 ] Counsel for the Kovacs argued that reducing a person to the condition of slavery ‘cannot be transitory in nature’ because it would be inconsistent with the concept of legal ownership of property. [Kovacs  2 Qd R 51 ] In rejecting this ground of appeal the Court of Appeal held that:
The offence of slavery is not one constituted by the doing of prescribed acts. It is an offence which, in this case at least, is constituted by a course of conduct which comprises a number of acts over an extended period. [Kovacs  2 Qd R 51 ]
As such it was held that the prosecution did not need to establish ‘that the subject offences occurred on every day between the dates alleged.’ [Kovacs  2 Qd R 51 ] This finding reflects the expansion of the modern definition of slavery espoused in the Wei Tang decision, whereby the victim does not need to be under total ‘lock and key’ control in order to prove the offence of slavery.
A third ground of appeal that the verdicts were unreasonable and against the weight of evidence, was also dismissed. [Kovacs  2 Qd R 51 [44-48]] In support of this ground of appeal it was contended that Ms G had ‘a degree of personal freedom inconsistent with the existence of slavery as defined in the Code.’ [Kovacs  2 Qd R 51 ] Evidence of this, it was submitted, was that she was not locked in her room, was not prevented from leaving the store or house, had access to a telephone, sent and received letters, and was aware money was being paid to her family, despite not receiving wages herself. [Kovacs  2 Qd R 51 ] The court held, however, that this ‘freedom’ was ‘largely illusory or non-existent’. [Kovacs  2 Qd R 51 ] It is on this issue that the court embraced the approach of the High Court in R v Tang. Justice Muir noted in his judgment that a number of factors combined to prevent Ms G from leaving:
The complainant's family were in circumstances of dire poverty. The receipt of money from the appellants was important in alleviating the effects of that poverty. The complainant knew this and had allowed herself to be persuaded to come to Australia in order to provide financial assistance to her family. The complainant's mother was sick and the complainant did not want to let her down or trouble her. The complainant gave evidence to the effect that Mr Kovacs told her not to say anything to the police or they would all go to jail. Having regard to the manner in which she had gained entry to Australia, Mr Kovacs' warning would not have appeared exaggerated.
Other factors operating to the complainant's disadvantage were: her limited knowledge of the English language, at least in the first few months of her stay; her lack of Australian friends or associates; the unspecified amount of debt of which she had been informed and and the remote location of the shop and house. [Kovacs  2 Qd R 51 [47-48]]
Ms G was also forcibly returned after attempting to escape and had her passport confiscated. [Kovacs  2 Qd R 51 ] It was on consideration of this evidence that the Court rejected this ground of appeal. This decision highlights that despite the apparent freedom of a person to leave, they may still be enslaved by a number of more subtle factors.
The fourth ground of appeal, that ‘the primary judge erred in failing to order separate trials’ for the two defendants was also held to be unsustainable. [Kovacs  2 Qd R 51 [49-53]]
The Kovacs’ appeal was, however, successful on the basis of two errors of law. First, the Court of Appeal held that the trial judge erroneously admitted evidence of the complaints made by Ms G to Ms Fabian and that he failed to direct the jury to ignore that evidence. [Kovacs  2 Qd R 51 ] Second, the Court of Appeal held that the trial judge failed to give adequate directions when one witness gave evidence from behind a screen. [Kovacs  2 Qd R 51 [77-84]] Because a screen was used the presiding judge must, according to s 21A(8) of the Evidence Act 1977 (Qld), direct that the jury should not draw inferences as to the defendant’s guilt, increase or decrease the probative value of the evidence or give it any greater or lesser weight. It was held that the directions given by the trial judge did not address all of these elements. [Kovacs  2 Qd R 51 ] The Court highlighted a number of inconsistencies in the evidence but ultimately found that the ‘natural limitations’ on the Court of Appeal’s ‘ability to evaluate and find the relevant facts prevent a finding of guilt beyond a reasonable doubt.’ [Kovacs  2 Qd R 51 [85-106]]
Ibidem Defendant 1
Queensland Court of Appeal
Official case reports
First appeal (slavery charges): R v Kovacs  2 Qd R 51, (2009) 192 A Crim R 345,  QCA 417
Appeal against sentence: R v (Melita) Kovacs  QCA 116
Second appeal (rape charges): R v Kovacs  QCA 143
First appeal (rape charges): R v KO  QCA 34
Unrelated rape appeal: R v Kovacs  QCA 441
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